April 1, 2013

Short Wins - More On The Federal Defender Budget Mess And The Withering Sixth Amendment

Two wins in the Eighth Circuit - nice. Other than that, it's a whole lot of resentencing news.

In news related to last week's short wins post, though, where I lamented that Assistant Federal Public Defenders will be doing the same work with less pay, here's more information about the horrible budget/employment situation in our country's federal defender's offices.

In particular, I received an email calling me out for underdescribing how bad the situation is.

From a source in a leadership position of a federal defender organization, on the way the budget cuts have worked in that office:

[T]he nationwide problem is bigger than some lawyers doing the same work for less pay.

And it should be said that the Congressional sequester is but part of our pain. Last year, we ran our joint for just over $4M (and returned nearly $100K at year's end). We started this year upon preliminary funding of $3.8M, notwithstanding a governance scheme that builds in pay raises for our non-AFDs (who are on the GS scale), despite the increasing costs of our privately obtained (by way of our CDO status) health insurance, etc.

Then, the judiciary elected to cut all FDO budgets by five percent: this cut to our annual budgets was announced on Valentine's Day (meaning that resulting 12-month deficits could only be recovered over the fiscal year's remaining 7+ months). This took us to $3.6M (when, last year, we spent $4M).

Then the sequester hit and cost us another 5.5 percent off our annual budget, leaving us halfway through this year to limp into the future on funding $600K less than we judiciously spent just a year ago.

With a gap like that, furloughs and layoffs are inevitable. These are hard times for the 6th Amendment in federal court. Sure, many folks will be able to afford counsel - but thousands of people a year, under attack by the most powerful government in the history of the planet, will have compromised access to a lawyer.

Sad times.

To the victories . . .

1155650_berlin_siegessule.jpg1. United States v. Benjamin, Third Circuit: Appellant was convicted of, among other things, two counts of possession of a firearm by a convicted felon. One charge was based on appellant's use of a gun at a gun range, and the other was based on possession inside his home. Because there was no evidence showing that appellant relinquished constructive possession of the gun, there could only be one conviction. Because this error was plain, affected appellant's substantial rights, and seriously affected the fairness, integrity, or public reputation of judicial proceedings, the case was remanded with instructions to vacate the home possession conviction and to merge both convictions into one.

2. United States v. Culbertson, Fifth Circuit: Appellant pled guilty to possession with intent to distribute methamphetamine and was sentenced to 87 months in prison followed by five years' supervised release. Appellant violated his conditions of supervised release and was sentenced to 30 months in prison, followed by 113 days in a residential reentry program. This sentence was above his advisory guideline range of five to 11 months in prison. Because the court based the sentence on its perception of appellant's rehabilitative needs, the case was remanded for resentencing.

3. United States v. Higgins, Eighth Circuit: Appellant was convicted of distributing crack cocaine, among other drug offenses, and sentenced to 360 months in prison on that count. Because the court erred in applying a career offender enhancement to that sentence under guideline ยง 4B1.1, the sentence was vacated and the case remanded for resentencing.

4. United States v. Johnson, Eighth Circuit: Appellant's supervised release was revoked and he was sentenced to 21 months in prison. At the hearing, a probation officer read a police report into evidence alleging appellant had been arrested for certain crimes. The government offered no explanation for the arresting officer's unavailability. This lack of an explanation, balanced against the reliability of the report, resulted in a violation of appellant's right to confront adverse witnesses. As a result, appellant's sentence was vacated and the case remanded for resentencing based on the existing record before it, without considering the police report.

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The Federal Criminal Appeals Blog is published by The Kaiser Law Firm PLLC in Washington, DC. The Kaiser Law Firm represents people who have been charged with federal crimes, are under federal investigation, or have a federal criminal appeal.

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